Edited by Tom Ginsburg and Rosalind Dixon
Chapter 21: The Structure and Scope of Constitutional Rights
Stephen Gardbaum* The title and subject of this chapter is the structure and scope of constitutional rights. Because this is not (yet) a generally or widely recognized sub-field of comparative constitutional law, it is quite possible that some readers will find themselves scratching their heads wondering what exactly these words refer to. Indeed, the very term ‘the structure of constitutional rights’ might appear to be something of a contradiction for, as the organization and table of contents of this volume well illustrate, issues of ‘constitutional structure’ (Part III) are generally understood to be distinct and separate from issues of ‘individual rights’ (Part IV). The former cover such matters of institutional and inter-institutional design as separation of powers, federalism and judicial review, whereas the latter concern the direct constitutional relationship between the state and the individual. Even if, in Madisonian vein, we acknowledge that traditional issues of constitutional structure have important effects on this relationship, such as limiting the concentration of political power, these effects are indirect and distinct from the impact of rights. So let me begin by doing what probably no other contributor to this book will need to do: explain the chapter title. The structure of constitutional rights may usefully be distinguished from their substance. The latter concerns the content and parameters of particular rights that exist in a given constitutional system. By contrast, the structure is the underlying framework – set of concepts, principles, doctrines and institutions – that applies to, organizes and characterizes constitutional rights analysis as a...
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